Oklahoma resident Amanda Aguilar was arrested for smoking marijuana while pregnant. Although Aguilar had a prescription for medical marijuana, prosecutors concluded her fetus did not. They charged the mother of five with child neglect, a felony.
Now, the state’s top criminal court says prosecutors had no basis to do so.
The ruling should be good news for women who use cannabis to relieve morning sickness and other pregnancy ailments. But the opinion in this case makes clear that some Oklahoma judges like Pregnant cannabis users seen criminalized.
“This baby does not have a medical marijuana license,” Judge Gary L. Lumpkin wrote in a dissenting opinion.
Even Justice Scott Rowland, who wrote the majority opinion, emphasized that the court would not “condone the use of marijuana by pregnant women” and urged Oklahoma lawmakers to “consider adding a provision to the law that would clarify when, if ever, “licensed use of cannabis”. May constitute child neglect. “
Aguilar’s arrest is not an isolated case
Aguilar is not the only Oklahoma mother to be charged for exposing her fetus to legally smoked marijuana. According to the nonprofit Pregnancy Justice, “at least eight women have been charged based on this theory since 2019.”
Another Oklahoma mother, Brittany Gunsolus, is one such woman. She, like Aguilar, was charged with felony child neglect after her son tested positive for marijuana at birth, even though she also had a medical marijuana prescription and child welfare workers investigated and deemed her healthy.
Gunsolus’ attorneys argued that the use of prescription marijuana during pregnancy should be treated like any other prescription drug taken during pregnancy. But the Comanche County prosecutor apparently disagreed. “At a court hearing in Comanche County in August [2023]a prosecutor argued that Gunsolus violated the law because her unborn child did not have his own, separate state license to use medical marijuana,” frontier reported.
With the help of Pregnancy Justice, Gonsolus asked the Oklahoma Supreme Court to hear her case and rule that pregnant marijuana users with valid medical marijuana licenses cannot be criminally charged. The court refused.
Charged with “non-existent crime”
Thanks to the zeal of the Kay County prosecutor, Aguilar’s case made it to court.
After being charged with child neglect, Aguilar filed a motion to dismiss, citing insufficient evidence, arguing that medical marijuana use during pregnancy is not illegal. “There are a lot of moms out there who are going to accept these charges out of fear,” Aguilar told reporters. frontThe river is not her.
The judge granted Aguilar’s motion and the case against her was dismissed. But Kay County District Attorney Brian Hermanson continued his appeal to the Oklahoma Supreme Court.
On July 18, the Oklahoma Court of Criminal Appeals ruled in Aguilar’s favor.
“If we found that Aguilar’s use of marijuana while fully authorized by her medical marijuana card became illegal because of her pregnancy, it would require us to rewrite the statute in a manner that we believe is inappropriate for the court,” Rowland wrote. ” The court held that it upheld the lower court’s request to grant Aguilar’s motion to dismiss.
Oklahoma law includes in its definition of child neglect “the failure or neglect to protect a child from…the use, possession, sale or manufacture of illegal drugs.” In Aguilar’s charging documents, police said she was guilty of exposing a child to a “controlled dangerous substance.”
“Thus, the charging documents accuse Aguilar of a crime that does not exist,” Rowland wrote. He pointed out controlled hazardous substances and illegal drugs are not synonymous, as many controlled substances can be legally possessed and used by prescription. In this case, Aguilar had a prescription for marijuana, which means she did not illegally possess or use it.
The influence of fetal personality
In dissent, Lumpkin argued that Aguilar’s use of marijuana should be illegal because “only [she] Has the license to use it, not her children. [Aguilar’s] The use and possession of cannabis, a Schedule I drug, is illegal.
Justice David B. Lewis raised a similar theme in his dissent, writing, “A medical marijuana license is certainly not a legal right to share, transfer, or distribute marijuana to others who do not have a license.” Authorization, especially for those who use or possess marijuana without legal authority “Who can really doubt that a licensed marijuana consumer would be at risk for knowingly sharing, distributing, or allowing a child for whom they are responsible for the welfare of a child to ingest marijuana without permission. Legal Consequences? “
Rowland denies these claims. He pointed out that by this logic, “it is illegal for any doctor to prescribe any controlled dangerous drug to any expectant mother.”
But most people don’t seem to believe it should Cannabis is legal for pregnant women to use with a prescription. “We understand [Lumpkin’s] There is a clear desire to discourage pregnant women from using marijuana,” Rowland wrote, asking the Legislature to “address this issue.”
Most opinions and objections are steeped in the language of fetal personhood, a concept that views the fetus as a person with legal rights, separate from the mother who carried it.
Fetal personhood is most often used as a reason to ban abortion. But it can also be used to justify various restrictions on pregnant women or to impose criminal penalties on those who engage in behavior that the state deems not to be in the best interests of the fetus. It’s everything from accusations against women who use drugs while pregnant (Rowland generally agrees, writing that “expectant mothers who expose their unborn children to illegal methamphetamine may be convicted of child neglect”) to punishing pregnant women in accordance with. to be shot Because she put herself in danger.
It also paves the way for closer monitoring all Pregnant women and regulate their wide range of activities.
Those who want to criminalize all pregnant drug users are not only fueling a slippery slope, they are also failing to act in the best interests of the child. Fear of arrest generally isn’t going to stop someone who’s addicted to drugs from using, but it might stop them from seeking substance abuse treatment, receiving proper prenatal care, or delivering in a hospital—things that might compound any ill effects of prenatal drug exposure.
When we look specifically at cannabis, things get even murkier.
Unlike the adverse effects of excessive alcohol consumption during pregnancy, which are well documented, the effects of marijuana use during pregnancy are less certain. There is no clear evidence that it has any negative effects, and many studies claim to have found similarly serious flaws (for example, mothers in the sample who used marijuana also used other drugs, including cocaine.) At the same time, many women reported that while using marijuana Being pregnant at the same time can help relieve morning sickness and other pregnancy ailments.
As with many issues involving the woman’s body, the decision to use marijuana during pregnancy is best left to the pregnant woman and her doctor.
We hope Oklahoma lawmakers agree.
